Ship arrest in Algeria

Introduction

Algeria has a long tradition in maritime law, including maritime arrests. Algerian law is generally not restrictive in allowing conservatory and provisional measures. Algeria, and most specifically the ports of Algiers, Oran, Annaba as well as the oil and gas terminal of Arzew and Skikkda has a favourable reputation for being a convenient place to arrest ships.

1. Applicable laws

Algeria is since August 1964 member of the Brussels Arrest convention of 1952. Some general principles of the convention have been incorporated in the Algerian Maritime Code. However, in practice for the Algerian jurisprudence the Algerian Maritime Code and the provisions of the Algerian Code of Civil remain the major source of law regarding ship arrest in Algeria. 2. Nature of the claim underlying the Arrest

In theory there are two regimes

(i) A sea-going ship, flying the flag of a contracting State can be arrested in an Algerian port as a security for a maritime claim, as specified in littera a to q of Article 1.1 of the Brussels convention of 1952. (ii) A sea-going ship, flying the flag of a non contracting State can be arrested in an Algerian port as a security for a maritime claim, as specified in Article 151 Algerian Maritime Code Pursuant to this provision maritime claim means any claims arising out of a contract or an event in connection with the operation or the management of the ship, any loss or damage caused by the ship due to its exploitation. In practice, Algerian courts tend to apply the provision of Article 151 Algerian Maritime Code without differentiation. 3. Ships that can be subject to Arrest

a) the particular ship

The ship, in respect of which the maritime claim arose, can be arrested. The ship can be arrested even if the owner of the ship is not the debtor of the maritime claim. The owner of the ship, in order to have his ship released from arrest, has to give a guarantee for the payment of the claim of the author of the arrest. This means that the owner of the ship will have to guarantee the payment of the claim, even if a third person (charterer, issuer of the Bill of Lading) is the debtor toward the arresting party.

b) Sisterships

Pursuant to Article 154 Algerian Maritime Code, it is possible to arrest another ship, which is owned by the person who, at the time when the maritime claim arose, was the owner of the particular ship in respect of which the maritime claim arose. However, to the difference of the jurisprudence of several European States, Algerian courts do not authorise the arrest of a ship owned by another company than the debtor of the claim. This even if the claimant has sufficiently established that the separate corporate personality is only a fiction that does not correspond to reality.

4. Arrest Proceedings

a) Authorisation

A request to obtain authorisation to arrest a se-going vessel has to be presented before the President of the court which has jurisdiction for the port of call. It is a unilateral request, and the President immediately grants or rejects authorisation. In theory, according to the Algerian code of civil procedure, the request can be submitted at any time, even out of court hours and during the weekend (in Algeria Thursday and Friday). In practice, the request can be submitted only from Saturday to Wednesday. The Ordinance granting authorisation to arrest a ship is to be served by a Bailiff to the Captain of the vessel, the port authorities, the coast guards, and the customs.

b) Documents

The documents needed to arrest a ship are those evidencing the claim (such as contracts, bills of lading, letters requesting payments, protest or interim report of a surveyor, etc. Since the President will control very accurately the existence of a maritime claim, it is highly recommended to have as much documentary as possible to prove the alleged maritime claim. Even if the President is conversant in English, he will mandatory request the translation of theses documents in Arabic. If the translation is made outside Algeria the signature of the translator has to be authenticated by a public authority of his country and by the Algerian embassy territorially competent.

No power of Attorney is requested from the attorney representing the claimant.

c) Counter-Security

Algerian law practice does not impose on the claimant the deposit of a counter-security to cover costs, charges, damages, fees or other expenses deriving from a potential wrongful arrest.

d) Cautio judicatum solvi

According to the common provision of a provision of the CPC the foreign claimant has to deposit a cautio judicatum solvi, if requested by the defendant (national of foreigner). Usually the amount of this guarantee is rather low.

e) Action on the merits:

Pursuant to Article 350 of the Algerian Code of Civil Procedure, the claimant must institute a legal proceeding on the merits before the competent court, within 15 days from the day the Ordinance authorising the is issued, otherwise the arrest will be held null and void. In this respect the Forum Arresti concept is applicable in Algeria. Article 8 of the Algerian Code of Civil Procedure stipulates that the court of the place of arrest is competent to authorise arrests and other subsequent proceedings. Therefore, an Algerian court may hold itself automatically competent to try the case on its merits by the sole fact that the ship was arrested within its jurisdiction. 5. Release of the Arrest

Article 156 Algerian Maritime Code stipulates that the court in the jurisdiction of which the ship has been arrested shall permit the release of the ship upon sufficient security being furnished.

The owner of the ship may demand the immediate release of the ship from arrest upon issuing an acceptable Bank, covering the amount of the claim of the arrestor. P&I Club Letter of Guarantee are generally refused, unless the claimant accepts them as guarantee. The lift of the arrest is made under the control of a judge on a contradictory basis in summary proceedings. There is no question of minimal formalities which can be fulfilled within few hours.

The owner of a ship may also request for the withdrawal of the Ordinance, granting authorisation to arrest the ship. This request has to be filed before the same Judge who granted the authorisation. This request is heard on a contradictory basis in summary proceedings. Since the judges grant rather easily the request for arrest, they will be very severe against the arrestor, if it appears during the subsequent contradictory proceeding that the arrestor has obtain the authorisation for arrest by misleading them.

6. Wrongful arrest

The arrestor bears the risk of arresting the ship. If he loses the contradictory summary proceedings or the case on the merits, his arrest may be considered wrongful and he could have to indemnify all costs and damages caused to the ship, as a result of such wrongful arrest. However in practice, Algerian Judges are reluctant to countenance a claim for compensatory damages for wrongful arrest unless the bad faith or malice of the arrestor is established. 7. Costs

a) Court costs

The court costs are very minimal, around 200 Euros.

b) Bailiff's costs

The arrestor must pay the costs and fees of the bailiff who will serve the arrest upon the vessel's master, the port authorities, the coast guards and the customs. The notification of the arrest to these persons and public entities is compulsory under Algerian law. The costs and fees of the bailiff depend much on the amount for which the vessel was arrested, as well as the urgency of the matter. They could go up to 1.500 Euros.

c) Translations fees

All documents submitted must be translated in Arabic and the signature of the foreign sworn translator should be authenticated by the authorities of his country and the Algerian Embassy territorially competent.Parts of the translation can be done in Algeria at less cost and more rapidly.These costs depend much on the nature and number of the documents submitted.

d) Attorney's fees

Usually the lawyer's fees are calculated on an hourly basis. However, flat fee taking into account the difficulty and the urgency of the matter could be agreed with the client.